Prosecuting Bob McDonnell no slam dunk

No one disputes that Bob McDonnell and his wife are in one heap of a legal and political mess. Whether they’ll end up behind bars is another matter.

As lawyers for the Virginia governor and his wife reportedly met Monday with prosecutors, a chorus of legal experts warned of inherent challenges facing the feds if they decide to press ahead with criminal charges.

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Prosecuting Bob McDonnell no slam dunk - John Harris reports

Hundreds of thousands of dollars in gifts and loans given to the first family by Star Scientific CEO Jonnie Williams have irreparably damaged the Republican governor’s once sterling public image — despite his efforts to return them.

But Virginia has some of the laxest state ethics laws in the country and, to pursue the most serious federal charges, prosecutors need to prove that the governor took the gifts with the intent to provide some kind of quid pro quo.

McDonnell has argued that he was in the dark about many of the gifts given to his wife. He maintains that he would have gone to a luncheon at the governor’s mansion for one of Williams’s products, or arranged a meeting with the secretary of the state’s health department, whether or not he received anything of value from the business executive. The governor has denied breaking any law.

“For McDonnell, as of now, I’ve seen no smoking gun,” said former White House special counsel Lanny Davis. “I haven’t seen anything remotely close. There’s a lot of innuendo. … But I don’t see any governmental action following the gifts or the donation.”

To be sure, much remains unknown about what evidence the government has on McDonnell that might not have leaked.

One bad sign for the governor: The Washington Post, which first disclosed Monday’s meetings between lawyers and prosecutors in Alexandria, reports that Williams has been cooperating with federal investigators. He has reportedly said that McDonnell thanked him for gifts the governor denied knowing about and discussed ways in which he could help the company. Star Scientific representatives also told investors this month that they will not be prosecuted in matters being probed by the U.S. attorney.

Josh Berman, a former public corruption prosecutor at the Justice Department, guessed that “bribery” charges are probably not in play but that McDonnell could still be hit under statutes covering false statements to authorities or “gratuities” provided to a public official for an action taken or expected to be taken.

The timeline matters. Emails, calendar entries or proof of conversations between the governor and Williams before important decisions were made could be data points to build a larger case.

“What the Justice Department has been good at lately has been identifying payments with either knowledge of an ‘ask’ or an act that was executed,” said Berman. “Then essentially they have to build around it.”

“It’s a challenging case for prosecutors, but frankly it’s not so different than the cases brought in the Abramoff realm,” he added, referring to the public corruption cases that felled lobbyist Jack Abramoff, several associates and former Rep. Bob Ney (R-Ohio).

Frank Shafroth, director of the Center for State and Local Leadership at George Mason University, said prosecuting McDonnell would be a real challenge. Shafroth was assistant counsel on a Senate Banking subcommittee under Harrison Williams, the New Jersey senator convicted in the Abscam scandal in the early 1980s.

“It’s hard here,” he said. “You got a governor going out of office because he can’t run again, so the idea that you’re going to devote very significant political and financial resources to try to go after something that would be very hard to prove — it seems to me to be unlikely.”

“The line between politics and serving your constituents and politics and delivering something in exchange for a benefit rendered is a hard line to draw,” he said.

Shafroth said that alternatively, a settlement in which McDonell agreed to resign would “be a big scalp for someone at the Justice Department.”

William & Mary law professor Michael Steven Green explained that the burden on prosecutors is to prove more than just that gifts were accepted.

“You’ve got to show that there was some kind of intent, either an exchange of favorable treatment or intent to give favorable treatment, and that’s a hard thing to show,” he said. “The person, the government official, could argue they were going to perform that action anyway.”

Davis worked for Bill Clinton when he faced a series of investigations into whether donors benefited improperly from their fundraising help during the 1996 campaign.